SOPHIA POWELL, ET AL. v. ERIC BRANDON WILLIAMS, ET AL.
No. 110536
COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
February 24, 2022
[Cite as Powell v. Williams, 2022-Ohio-526.]
JOURNAL ENTRY AND OPINION; JUDGMENT: AFFIRMED
Civil Appeal from the Cuyahoga County Court of Common Pleas Probate Division Case No. 2020 ADV 251913
Appearances:
Joseph Lewandowski, for appellants.
KATHLEEN ANN KEOUGH, J.:
{¶ 1} Plaintiffs-appellants, Sophia Powell and Tiffany Powell (“appellants“), appeal the probate court‘s denial of their motion for genetic testing and dismissal of their will-contest complaint. For the reasons that follow, we affirm.
{¶ 2} Larry Williams (“decedent“) died, testate, on August 14, 2019. The decedent‘s Last Will and Testament, dated May 29, 2018 (hereinafter “will“), specified that he had four children — defendant-appellee, Eric Brandon Williams (“Williams“), who is an adult, and three minor-aged children. The will appointed Williams to serve as executor and identified him as the sole primary beneficiary of the decedent‘s estate. The will further designated the decedent‘s minor children and Williams‘s children, if any, as contingent beneficiaries.
{¶ 3} On September 26, 2019, Williams applied to the probate court to probate the decedent‘s will and to administer his estate. As part of that application, Williams identified appellants as the decedent‘s “alleged daughters.” The probate court subsequently appointed Williams as executor and issued him letters of authority to administer the estate.
{¶ 4} On May 21, 2020, appellants filed an action contesting the decedent‘s will, contending that they were the decedent‘s daughters and alleging that the decedent lacked testamentary capacity to execute the will or was under undue influence and duress by Williams in executing the will. As such, appellants requested that the probate court set aside the will, declare that the decedent died intestate, and award them a share of the decedent‘s estate. Appellants further requested that if Williams contested that appellants were, in fact, the decedent‘s natural-born children, that the court order genetic testing of Williams or that the decedent‘s remains be exhumed for genetic testing. Williams filed an answer, denying the allegations, including that appellants are the decedent‘s daughters.
{¶ 5} After several pretrials and discovery, appellants filed a motion for genetic testing to determine whether they are, in fact, the decedent‘s natural-born children. The motion requested that the court order DNA genetic testing on Williams and sought permission to request the voluntary consent of their mother and the decedent‘s brother to submit to DNA genetic testing. Appellants asserted that as their “first step” in contesting the decedent‘s will, they must establish that they are the biological children of the decedent. They claimed that in addition to an affidavit from their mother, birthday cards from the decedent, “beneficiary designations,” and their inclusion in the decedent‘s obituary, the genetic testing would conclusively prove that they are the decedent‘s children. Appellants generally asserted that “illegitimate children” are entitled to inherit under the laws of intestate succession
{¶ 6} Williams did not file any opposition to appellants’ motion, and the probate court did not conduct a hearing.
{¶ 7} On April 29, 2021, the probate court denied appellants’ motion for genetic testing, concluding that it lacked jurisdiction over any parentage action pursuant to
required under
{¶ 8} Appellants now appeal, raising the following sole assignment of error:
Ohio‘s statutory scheme denying an illegitimate child who is now an adult, (over 23), the right to inherit by intestate succession from the child‘s natural father unless the natural father has married the mother, the illegitimate child has been acknowledged in a court proceeding by the natural father[,] or the illegitimate child has been adopted by the natural father constitutes a violation of the [Fourteenth] Amendment‘s guarantee to the “Equal Protection of the Laws.”
I. Appeal1
{¶ 9} Appellants raise a constitutional argument challenging Ohio‘s statutory scheme regarding adult illegitimate children (i.e., natural-born children), and their ability to initiate proceedings to recognize a parent-child relationship after the alleged father‘s death for the purpose of inheriting under the laws of intestate succession.
{¶ 10} It is well established that a party cannot raise a constitutional issue for the first time on appeal. See State v. Awan, 22 Ohio St.3d 120, 489 N.E.2d 277 (1986), syllabus (“Failure to raise at the trial court level the issue of the constitutionality of a statute or its application, which issue is apparent at the time of trial, constitutes a waiver and therefore need not be heard for the first time on appeal.“) Moreover, even if appellants had properly raised and argued the
constitutional issue with the probate court, this case can be decided without reaching the constitutional issue. Reviewing courts should avoid reaching constitutional issues “when ‘other issues are apparent in the record which will dispose of the case on its merits.‘” In re D.S., 152 Ohio St.3d 109, 2017-Ohio-8289, 93 N.E.3d 937, ¶ 7, quoting Greenhills Home Owners Corp. v. Greenhills, 5 Ohio St.2d 207, 212, 215 N.E.2d 403 (1966); State v. Talty, 103 Ohio St.3d 177, 2004-Ohio-4888, 814 N.E.2d 1201, ¶ 9.
{¶ 11} Although appellants generally argued in the probate court that denying a natural-born child her right to inherit under intestate succession violates the constitutional right of equal protection under the law, they failed to set forth specific challenges to Ohio‘s Parentage scheme, including its statute of limitations to bring such an action, and how Ohio‘s statutory scheme deprives appellants equal protection under the law. Accordingly, because
{¶ 12} Nevertheless, the Ohio Supreme Court has previously determined that Ohio‘s statutory scheme, which only allows natural-born children to inherit from their natural fathers under certain circumstances, is constitutional and does not violate natural born children‘s rights to equal protection of the law as guaranteed by the
analysis regarding illegitimate rights in wrongful death actions and those in inheritance cases — “Even if the Parentage Act were interpreted to preclude illegitimate children from claiming inheritance rights from and through their natural fathers absent an adjudication of paternity inter vivos, it is clear that the Ohio intestate succession scheme would nevertheless be constitutional.“); Rushford v. Caines, 10th Dist. Franklin No. 00AP-1072, 2001 Ohio App. LEXIS 1512, 9-10 (Mar. 30, 2001).
II. Probate Court‘s Jurisdiction
{¶ 13} Appellants focus their appeal on the constitutional challenges to Ohio‘s statutory scheme regarding illegitimate children, but do not make any specific argument challenging the probate court‘s denial of their motion for genetic testing or dismissal of their will contest complaint. Nevertheless, we find no error.
{¶ 14} Although appellants brought this matter as a will-contest action, it morphed into a parentage action when appellants requested that the probate court order Williams and other nonparty individuals to submit to genetic testing. The probate court, in its well-written opinion, properly dismissed the complaint, finding that it lacked jurisdiction to proceed.
{¶ 15} It is well-settled that proceedings in probate court are restricted to those actions permitted by statute and by the Constitution because the probate court is a court of limited jurisdiction. Corron v. Corron, 40 Ohio St.3d 75, 531 N.E.2d 708 (1988), paragraph one of the syllabus, citing Schucker v. Metcalf, 22 Ohio St.3d
33, 488 N.E.2d 210 (1986). Pursuant to
{¶ 16} Additionally, the probate court retains jurisdiction to determine the existence of a parent-child relationship in certain circumstances.2 When the alleged father is deceased, the probate court retains jurisdiction of a parentage action under
[i]f the alleged father of the child is deceased and proceedings for the probate of the estate of the alleged father have been or can be commenced, the court with the jurisdiction over the probate proceedings shall retain jurisdiction to determine the existence or nonexistence of a parent and child relationship between the alleged father and any child.
{¶ 17} In this case, the alleged father has a pending estate action subject to the jurisdiction of the probate court. Accordingly, under
A. Will Contest Action
{¶ 18} Only a person with standing can bring an action or continue to prosecute an action. State ex rel. Dallman v. Franklin Cty. Court of Common Pleas, 35 Ohio St.2d 176, 178, 298 N.E.2d 515 (1973). Under to
“person interested,” as defined by the statute, is one who has a “‘direct, immediate and legally ascertained pecuniary interest in the devolution of the testator‘s estate as would be impaired or defeated by the probate of the will, or be benefitted by setting aside the will.‘” York v. Nunley, 80 Ohio App.3d 697, 610 N.E.2d 576 (8th Dist.1992), quoting Bloor v. Platt, 78 Ohio St. 46, 49-50, 84 N.E. 604 (1908); see also In re Estate of Scanlon, 8th Dist. Cuyahoga No. 95264, 2011-Ohio-1097, ¶ 12.
{¶ 19} In this case, appellants cannot claim to be “person[s] interested” under the decedent‘s will because they are not named as beneficiaries. Accordingly, to have standing to bring a will-contest action as a “person interested,” appellants would have to establish that they could inherit under the laws of intestate succession if the decedent‘s will was declared invalid.3 To do this, the appellants must establish the existence of a parent-child relationship.
B. Parentage Action
{¶ 20} Prior to 1982, an illegitimate child could inherit from her natural father only through certain means. The father had to: (1) marry the mother and acknowledge the child as his; (2) formally acknowledge in probate court that the child was his with the consent of the mother; (3) designate the child as an heir-at-law; (4) adopt the child; or (5) make a provision for the child in his will. See White
v. Randolph, 59 Ohio St.2d 6, 11, 391 N.E.2d 333; Garrison v. Smith, 55 Ohio App.3d 14, 15, 561 N.E.2d 1041 (6th Dist.1988).
{¶ 21} Currently, however, a child born out of wedlock can also inherit from her natural father by alternate means under the Ohio Parentage Act, promulgated under
{¶ 22} Relative to this appeal, an action to determine the existence or nonexistence of the father and child relationship may be brought by the child under
An action to determine the existence or nonexistence of the father and child relationship may not be brought later than five years after the child reaches the age of eighteen. Neither section 3111.04 of the Revised Code nor this section extends the time within which a right of inheritance or a right to a succession may be asserted beyond the time provided
by Chapter 2105., 2107., 2113., 2117., or 2123. of the Revised Code.
{¶ 23} In this case, no assertion has been made that either of the appellants are 23 years old or younger. Accordingly, even if appellants properly brought a parentage action through the will-contest proceeding, their parentage action is time-barred under the applicable statute of limitations. As such, no determination could be made by the probate court regarding whether the decedent is the natural father of the appellants so as to allow appellants to inherit under the laws of intestate succession.
{¶ 24} Insofar as appellants contend that the limitation period in
There is no question regarding the constitutionality of this statute. The R.C. 3111.05 limitations period avoids the equal protection infirmities of shorter limitations periods, which the United States Supreme Court declared unconstitutional in Mills v. Habluetzel (1982), 456 U.S. 91, and Pickett v. Brown (1983), 462 U.S. 1. It also recognizes a child‘s right to paternal support throughout his or her minority and protects the state‘s interest in enforcing a father‘s duty to support illegitimate as well as legitimate children. See Johnson v. Norman (1981), 66 Ohio St. 2d 186, 20 O.O. 3d 196, 421 N.E. 2d 124; Franklin v. Julian (1972), 30 Ohio St. 2d 228, 59 O.O. 2d 264, 283 N.E. 2d 813.
Id. at 11, fn 1. Accordingly, until otherwise determined, the statute of limitations contained in
III. Conclusion
{¶ 25} Because appellants are not named as beneficiaries under the decedent‘s will, and they would not inherit under the laws of intestate succession,
the probate court properly found that appellants are not “persons interested” to have standing to bring a will contest action. As such, the court lacked jurisdiction over the matter and properly dismissed the case.
{¶ 26} The facts of this case are quite concerning, and unfortunately, this court cannot afford appellants the relief they are requesting. This court sympathizes with appellants, but until the General Assembly either changes the statute of limitations or creates an avenue to allow alleged natural-born children who have been socially recognized and known to the decedent or his heirs to obtain or establish the parent-child relationship beyond the existing statute of limitations, this court is bound by the laws as written.
{¶ 27} Judgment affirmed.
It is ordered that appellees recover from appellants costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, JUDGE
FRANK D. CELEBREZZE, JR., P.J., CONCURS;
MARY EILEEN KILBANE, J., DISSENTS (WITH SEPARATE OPINION)
{¶ 28} I respectfully dissent with the majority opinion. I would find that
{¶ 29} I propose that Ohio‘s Parentage Act,
{¶ 30} Here, appellants offer an affidavit from their mother, birthday cards from the decedent, and their names listed in the decedent‘s obituary to support their parentage claim. Additionally, the decedent named the appellants as beneficiaries
to his supplemental State Teachers Retirement System‘s pension. It is argued that the appellants were held out publicly as the biological daughters of the decedent. Yet, because the appellants did not legally establish a parent-child relationship before the age of 23, the current law prevents them from potentially inheriting their rightful shares of their father‘s estate. It is difficult to accept that the current law is in the best interest of the appellants and the large pool of similarly situated natural born children who must demonstrate a certain level of savviness at a relatively young age or forever be blocked from seeking and establishing a legally binding parent-child relationship.6
{¶ 31} For these reasons, I respectfully dissent.